President Barack Obama made news in December 2015 when he commuted the sentences of 95 federal prisoners. However, with only one year left in his second term, it is unlikely that he will act on thousands of pending clemency applications – even after he made granting clemency a top priority two years ago.

President Obama denied the vast majority of clemency petitions under the Department of Justice’s (DOJ) old review system. In April 2014 the DOJ announced significant changes in the Office of the Pardon Attorney, which processes pardon and commutation applications. The former head of the pardon office, Ronald L. Rogers, who previously served as a prosecutor, had been criticized for the dearth of pardons and for withholding important information in a high-profile clemency case.

Then-U.S. Attorney General Eric Holder announced a new emphasis on pardons, and said future clemency decisions would focus on the application of the Fair Sentencing Act of 2011. He noted that the limited retroactivity offered under the Fair Sentencing Act meant that many federal prisoners were still unfairly confined based solely upon the year they were convicted rather than any other factor.

The pardon and commutation process is exclusively granted to the president under the U.S. Constitution, and is an expression of mercy and a rare check on a justice system that often seems to impose lengthy sentences without regard to their impact on either an individual or societal basis.

Until recently, Obama’s sparse clemency grant rate – which included pardoning two turkeys during Thanksgiving in 2012 but no prisoners – had been the subject of widespread criticism. [See: PLN, Jan. 2013, p.32; May, 2011, p. 36].

But beginning in 2014, prisoner rights attorneys were encouraged to submit applications to the Office of the Pardon Attorney, and while in office Holder indicated a willingness to cooperate with the defense bar to help the justice system “deliver outcomes that are fair and accessible to all.”

Under the former clemency review system, the president only saw applications that made it to his desk after being approved by the DOJ – the same agency that prosecuted those who were seeking pardons and commutations. Deborah Leff was appointed Pardon Attorney in 2014 to replace Rogers; while she was praised for moving the clemency backlog along, she resigned in January 2016.

In her resignation letter, which was made public several months later, Leff said DOJ officials had been instructed to neglect clemency applications in favor of efforts to release low-level federal prisoners. As a result, she wrote, “the requests of thousands of petitioners seeking justice will lie unheard,” which was “inconsistent with the mission and values to which I have dedicated my life, and inconsistent with what I believe the department should represent.” Leff also said she had been denied “all access to the White House Counsel’s Office” – a critical final step in the clemency process.

The number of pending clemency petitions is significant; according to the DOJ’s Bureau of Justice Statistics, Obama has more unprocessed applications than any other president in the modern era. At the end of December 2015, over 10,000 clemency applications remained pending. Department of Justice officials announced the following month that 16 more attorneys would be hired for the pardon office.

Part of the backlog is a direct result of the DOJ encouraging federal prisoners to file clemency requests using the prison computer system, bypassing the normal petition process and generating thousands of applications in a relatively short period of time. To be eligible for clemency under the new initiative, prisoners must have served at least ten years of their sentence, have a limited prior criminal history, no gang or organized crime connections and a good conduct record while incarcerated. The criteria mainly applies to prisoners serving lengthy sentences for non-violent drug crimes. Over 22,700 pardon and commutation requests were submitted from 2009 through April 2016.

The DOJ was ill-prepared to process those numerous applications, relying instead on private attorneys who volunteered their time to help handle the backlog.

A number of legal organizations, including the ACLU, American Bar Association, Families Against Mandatory Minimums, Federal Public and Community Defenders, and National Association of Criminal Defense Lawyers joined together to form the Clemency Project 2014 to process federal clemency applications. But due to a lack of funding and the volunteer nature of the project, there were bound to be shortcomings.

Professor Rachel E. Barkow, a NYU Law School professor who has advocated for clemency reform, called Obama’s clemency initiative “a disaster,” adding, “once the president lays out the criteria for the cases he wants to grant clemency, the measure of success for that program is: Have you processed all the people who meet those criteria?”

Nonetheless, Jeffrey Robinson, Director of the ACLU’s Center for Justice, stated with respect to the December 2015 commutations, “President Obama changed the lives of 95 federal prisoners who had been serving sentences that were too harsh for their crimes. He has given these people and their families the justice and hope they have deserved for so long. Thousands will remain in prison, trapped by draconian punishments they don’t deserve, many of them casualties in the failed war on drugs. We encourage the president to leave no one behind.”

Acting Pardon Attorney Robert A. Zauzmer, a former federal prosecutor and “a key player in the [DOJ’s] implementation of both the 2013 Smart on Crime initiative and the U.S. Sentencing Commission’s retroactive sentence reductions,” was appointed in February 2016.

On March 30, 2016, the White House announced that President Obama had granted commutations to 61 prisoners, including 21 serving life sentences. He also had lunch with several former prisoners whose sentences were commuted.

To date, Obama has granted a total of 248 commutations during his tenure in office – more than the six previous presidents combined – including commuting 92 life sentences. While that is impressive, he has lagged behind other presidential records with respect to pardons, having granted only 70 pardons compared to 189 issued by President George W. Bush and 396 granted by President Bill Clinton.

With the Obama administration having only a few months left in office, and with thousands of backlogged clemency applications and no guarantee that the next president will be as willing to grant pardons and commutations, it appears doubtful that Obama’s clemency initiative will provide the relief that many prisoners and their supporters had hoped for.

Sources: Washington Post, www.thinkprogress.org, www.politico.com, CNN, www.whitehouse.gov, www.thehill.com, www.justice.gov, USA Today

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